LOFTUS V. Nazari

This is an unusual libel case in which a doctor has sued her patient. The patient posted comments on opinion websites complaining of the results of surgery the doctor had performed on her….

The plaintiffs are Dr. Jean Loftus, M.D., a plastic surgeon, and the professional corporation under the aegis of which she practices. The defendant is Catherine Nazari, a patient of Dr. Loftus, who underwent plastic surgery by her in 2006, consisting of breast implants, a breast lift, an arm lift on both arms, and a “tummy tuck.”

Catherine Nazari of Greendale, Ind. said she posted negative reviews of her plastic surgeon online after she suffered horrible scars and disfigurement from her procedures. That surgeon — Dr. Jean Loftus of Fort Wright — took her to court for those comments but the outcome was something neither one of them expected. “I had breast implants, breast lift, arm lift and a tummy tuck all in the same day,” said Nazari, 54.

Nazari said she underwent plastic surgery in 2006 to remedy loose skin caused by losing weight but what she woke up to was not what she expected. “My hands were numb. I had no feeling in my arms or my hands and she said it was due to the surgery, that it would come back in time but it never did,” she said. Unsightly scars and permanent nerve damage Nazari says are the results of that surgery. Soon after, she took to the Internet to warn others about her plastic surgeon. “I just wanted people to know. Be diligent. Do your research,” she said.

But Loftus has a different view. “I can’t stand by and let someone say absolutely false, disparaging, untrue statements, blatant defamatory accusations about me,” Loftus said. Loftus said the comments Nazari posted online about her practice were not negative reviews. They were lies. She said Nazari had a previous nerve condition that is causing her medical problems. Her incisions were not even deep enough to reach her nerves according to Loftus. That is when she decided to sue Nazari for defamation. “I did not file this suit to make money or to win an award. I filed this suit to bring out the truth,” Loftus said.

But a U.S. District Court judge in Covington did not agree and dismissed the doctor’s defamation claim and Nazari’s counterclaims citing under the 1st Amendment, Nazari had a right to her opinion.

Local defamation attorney Rob Linneman isn’t surprised. “This outcome is the outcome most constitutional scholars would have predicted. The consideration that is given to most 1st Amendment cases is what effect will it have on other people who would make comments if we punish this person for making this comment,” Linneman said.

Loftus disagrees. “It gives everybody the lead way to say whatever they want about anything they want and essentially hide behind the 1st Amendment,” Loftus said, noting she is most concerned about the precedent her case has set.

Though she is still unhappy with her procedures, Nazari is glad the legal fight is over. “My whole life has been disrupted because of all of this,” she said.

Nazari filed a medical malpractice suit against Loftus but the case was thrown out. No medical expert could support her claims that the problems she is experiencing are a result of plastic surgery.

“Horrible scars.” “Permanent nerve damage.” “Disfigured.” Patients have every right to describe your surgical results in such terms on Internet review sites. Or so it would appear, if a ruling handed down in federal court last month is deemed instructive to other courts. Loftus v Nazari (ED Ky, May 13, 2014) echoes numerous rulings against service providers who have filed libel suits against the authors of negative customer reviews posted online.

Loftus v Nazari is not the first such case to be lost by a surgeon, and it won’t be the last. It may be a hard pill for doctors to swallow, but it also highlights how important it is for doctors to familiarize themselves with the principles of defamation and liability, to avoid filing costly and wasteful lawsuits.

Richard M. Escoffery, an Atlanta-based attorney who helps his clients proactively manage online consumer reviews and address reputation attacks, believes the court conducted a fairly routine analysis to determine whether the statements at issue were defamatory or protected opinion. While not a watershed decision, he says, “What makes the case of interest is that these statements were made online, and the court recognized ‘[i]n the present Internet age’ that opinions made online have some social utility.”

In 2006, Jean Loftus, MD, a plastic surgeon with practices in Cincinnati and Fort Wright, Ky, performed an arm lift, abdominoplasty, breast augmentation with implants, and breast lift on Catherine Nazari. Unhappy with the results, Nazari posted negative reviews on three separate websites. Most notably, Nazari stated, “I had plastic surgery done by Dr Jean Loftus only to be left with permanent nerve damage in both arms, severe abdominal pain, horrible scars, and disfigurement in both breasts as a result of her mistakes.”

In response to Nazari’s posts, Dr Loftus filed a lawsuit for defamation and interference with future business prospects. Nazari filed counterclaims for defamation, invasion of privacy, malicious prosecution, and intentional infliction of emotional distress. The court dismissed all claims on summary judgment, meaning the court did not think there was enough evidence to warrant a trial for any of the claims.

The crux of the case is the defamation claim against Nazari. Defamation is an intentionally false statement which is publicly spoken (slander) or written (libel) that damages another person’s reputation. In general, to establish defamation, a plaintiff has to show: (1) there was a false statement; (2) the statement was communicated to a third party; (3) the statement was negligently or intentionally made without reason to believe it was true; and (4) the plaintiff’s reputation was harmed. Courts will assess the circumstances surrounding the statement and consider its effect upon the average reader or listener.

The court surmised, “Basically, she says she had the surgery, and she has the unfortunate conditions described. Also, in her opinion, they are the result of the surgery, which also in her opinion involved negligence on the part of Dr Loftus.”

” What is more, the court recognized that because the postings were made on ‘opinion websites,’ one would logically presume they were her opinion. “It’s an example of how application of the same law in the context of social media/the Internet can produce somewhat different results,” Escoffery explains.

Litigating a defamation claim is expensive, risky, and almost always a last resort. “Is it worth it to sue? Probably not,” says Joseph Niamtu III, DMD, a Virginia-based cosmetic facial surgeon who teaches fellow surgeons about managing their reputations online. “If you try to fight fire with fire, it will probably backfire.”

Escoffery agrees. Even if a physician prevails in a defamation case, “What’s the value of an uncollectable judgment? Winning a lawsuit might not be worth the cost if the defendant doesn’t have deep pockets,” he says.

Paradoxically, the publicity surrounding a defamation case may bring unwanted attention to the very information the physician sought to be suppressed. Lastly, potential plaintiffs should be aware of anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes. If applicable, the court might dismiss a physician’s claims and award attorney’s fees to the defendant.

“We might take from this case that some courts are less likely to find statements to be defamatory if they are made in this, rather than another, context,” Escoffery says. In today’s online environment, cosmetic surgeons have no choice but to prevent bad reviews, address them when they happen, and, if all else fails, accept them and move on.

William Payton and Alayna Zayas are contributing writers for Plastic Surgery Practice magazine. They can be reached via PSPeditor@allied360.com.

Lawsuits against patients, usually related to comments on online ratings and reviews websites, have met with varying results across jurisdictions nationwide. Before considering such a step, providers and their legal counsel should carefully consider cases in their state, such as the ones presented below, to determine if the facts of their case would support a cause of action recognized in the jurisdiction and would be likely to succeed.

Even if legal counsel believes that a potential suit has merit, physicians should consult with risk managers and other advisers regarding the public relations implications of such an effort. Providers may ultimately decide that a lawsuit would draw more attention to a negative review or video posted online than it would garner on its own and could perpetuate a reputation of the provider as “the doctor who sued her patient.” Possibly worse, the plaintiff may respond with a malpractice lawsuit.

Kentucky: No Evidence Posts Were Knowingly False

In a third case, the U.S. District Court for the Eastern District of Kentucky ruled that a physician could not pursue claims of defamation and tortious interference of business against a patient who posted several negative comments online.

The patient used online review sites to complain about poor results and a series of botched procedures.

The court dismissed the physician’s claims of defamation because it determined the patient’s statements to be protected opinions. Under Kentucky law, opinions may be considered defamatory only if they imply allegations of “undisclosed defamatory facts as the basis for the opinion,” the court said. All of the patient’s comments were found to be protected because they did not imply the existence of any undisclosed facts and were therefore not defamatory.

Because the statements were determined not to be defamatory, the court also dismissed the physician’s claim of tortious interference with business relations. Kentucky law requires proof of fraudulent representation, and the court said there was no evidence that the posts were knowingly false.